Justices Weigh Whether Railroad Retaliated Against Worker

By LINDA GREENHOUSE

Published: April 18, 2006

There was no disagreement in the Supreme Court on Monday about what happened to a railroad maintenance worker named Sheila White after she complained to a manager that she was being sexually harassed by her immediate supervisor.

Ms. White, the only woman working in the maintenance department at the Tennessee Yard of the Burlington Northern and Santa Fe Railway in Memphis, was reassigned from her job operating a forklift to the dirtier and less desirable job of repairing track. Soon after that, after she filed a complaint for retaliation with the Equal Employment Opportunity Commission, she was suspended for insubordination and went without pay for 37 days before a union grievance procedure led to her reinstatement with back pay.

The question for the Supreme Court in a lively three-way argument was whether that sequence of events amounted to retaliation by the railroad against Ms. White in violation of the Civil Rights Act of 1964. Title VII of that law, which protects workers against discrimination on the basis of race and sex, also prohibits retaliation against those who complain about discrimination. But neither the statute nor Supreme Court precedent offers a definition of retaliation.

There is ''no more vexing set of issues'' in employment law than those presented by retaliation cases, Carter G. Phillips, the lawyer for the railroad, told the justices. He noted that retaliation complaints filed with the E.E.O.C. have doubled in the last 10 years, now accounting for some 30 percent of the agency's docket. The definition of retaliation is ''plainly a fundamentally important question,'' Mr. Phillips said.

The case found the players in unusual positions before the court.

It was the railroad that brought the Supreme Court appeal, after losing to Ms. White in a jury trial and being ordered to pay her $43,500 in compensatory damages for retaliation. Yet the railroad is embracing the definition of retaliation that the jury used and that the United States Court of Appeals for the Sixth Circuit invoked in affirming the verdict: that to establish retaliation, a worker must have suffered ''a materially adverse change in the terms of employment.'' The railroad's argument was that the appeals court had misapplied the standard, and that Ms. White suffered no such significant change.

Ms. White's lawyers, while asserting that she could prevail under any standard, are arguing that the appeals court set the threshold too high. They say that any retaliatory action should be prohibited without having to rise to any particular level of significance.

In giving employees protection against retaliation, Ms. White's lawyer, Donald A. Donati, told the court, ''Congress anticipated only that retaliation would be as varied as the human imagination.''

''I worry about that,'' Justice Antonin Scalia interjected. ''That is the problem. Juries can have wonderful imaginations.'' He asked Mr. Donati: ''Is there no test that eliminates the trivial action,'' like a hypothetical retaliation suit based on a manager's failure to say ''good morning'' to an employee who had made a discrimination complaint.

Mr. Donati said there should be a general test of ''common sense'' and context. It was common sense, he said, to conclude that it was a change for the worse for Ms. White to go from operating a forklift to ''pulling up railroad ties.''

Mr. Donati urged the justices, under whatever standard they adopt, to refrain from announcing a ''bright line rule'' under which some retaliatory practices would be deemed automatically lawful. That would give employers a ''safe harbor'' and create ''serious harm to the underlying primary rights,'' he said.

At the time the case was litigated, the E.E.O.C. applied an employee-friendly standard of its own, defining retaliation as ''any adverse treatment'' that had a retaliatory motive and was ''reasonably likely to deter'' employees from making complaints in the future.

But in its brief in this case, Burlington Northern and Santa Fe Railway Company v. White, No. 05-259, the Bush administration repudiated that standard, which the agency had adopted during the Clinton administration. There must be a ''materially adverse change in the terms, conditions or privileges of employment,'' the solicitor general's office told the court.

But while this appeared to be a position that favored the railroad, the administration also argued that Ms. White's case in fact met that standard, and that she should prevail. It appeared likely that she would, one way or another, but that whatever standard the court adopts may have a greater impact when applied in a future case.

Mr. Phillips, the railroad's lawyer, who was making his 50th argument before the court, ran into resistance when he tried to argue that neither Ms. White's reassignment nor her temporary suspension amounted to prohibited retaliation.

''She wasn't hired as a forklift operator,'' he said, making the point that both her old and new duties fell within the description of her job category and so should have offered no basis for complaint. Ms. White suffered ''no direct economic effect,'' Mr. Phillips observed.

Justice David H. Souter was skeptical. ''So any employer would be well advised to have one really nice job and one really rotten job within a category,'' he said, adding: ''Isn't there a difference between sitting on a forklift and picking up steel rails with your bare hands? Do you agree that 'direct economic effect' can't be the only criterion?''

Mr. Phillips acknowledged that under the Supreme Court's precedents, an atmosphere of harassment can be so ''pervasive and severe'' as to amount to a change in an employee's working conditions, even in the absence of a ''tangible'' action by the employer. But that was not this case, he said.

Justice Ruth Bader Ginsburg noted that Ms. White suffered severe stress and had to seek medical help during her 37-day unpaid suspension. Even though she eventually received back pay, Justice Ginsburg said, ''nothing compensated her'' for that experience.

Mr. Phillips said Ms. White's anxiety did not count as a ''tangible employment act.'' The back pay ''cured'' the problem as a legal matter, he said.

While Title VII covers both discrimination and retaliation, the two fall under separate provisions that are worded somewhat differently. An underlying question in the case is whether Congress intended the same legal standard to apply to both, as the railroad and the solicitor general argued, or whether the retaliation provision was meant to be more open-ended, as Ms. White's lawyer argued.